What happens at a tribunal hearing?

Should the case go before an employment tribunal, both sides face giving evidence about the dismissal and being subject to cross- examination.

The question of which party is required to present their evidence first depends on the ‘burden of proof’, which varies according to the type of claim being made. For instance, in dismissal cases the burden of proof is on the employer – who has to establish they have been fair. The party who begins proceedings may give a brief opening statement and then call his or her witnesses in sequence. Each witness gives evidence in chief, is cross-examined and re-examined and asked questions by the tribunal.

Witness statements – ‘evidence in chief’ – are taken as read unless the judge or tribunal directs otherwise. In that instance the witness will be cross-examined.

The purpose of cross-examination is to elicit answers to matters of fact and to test the evidence of the witness. It is important that all contentious matters are put to the witness and any apparent contradictions or inconsistencies explored. This is the only time in proceedings where leading questions can be asked.

At the end of cross-examination there is an opportunity to re-examine any matters raised in cross-examination which were not covered, or not covered adequately, by evidence in chief. The process is concluded by the members of the tribunal asking questions – although this can take place before re-examination. Once all of the opening party’s witnesses have been heard and their evidence concluded, the other party will go through the same process.

At the conclusion of proceedings the party who went second will sum up their case first. These are known as final submissions and should draw together the evidence to demonstrate how it supports their case. If there is any relevant law it should be quoted and photocopies given. If there are legal authorities, such as previous cases, the other side should have them in advance in order to deal with them effectively. The tribunal is often grateful for written submissions on complicated cases with skeleton arguments.

The tribunal usually deals with the issue of liability first and then quantum (amount) or other remedy, either on the same day or at a separate remedy hearing. There are three remedies: reinstatement (returning to the job), re-engagement (returning to the organisation but in a different role, which must be specified) and damages. In practice, the breakdown of trust between employer and employee means that in the vast majority of cases reinstatement or re- engagement are not considered.

A decision must contain certain matters. For example, if compensation has been awarded, the amount of compensation must be given together with a table showing how it was calculated. There must be a breakdown of interest in sex discrimination and equal pay cases. In unfair dismissal cases the tribunal must give the principle reason for the dismissal and, if it makes any finding of contributory conduct/fault, explain what the finding is and state the percentage.

The Equality Act gives tribunals the power to make recommendations that affect the wider workforce in discrimination claims, e.g. that policies are more effectively implemented. This does not apply to equal pay claims. The decision will also include the basis upon which the tribunal has made its decision, the finding of fact it has made (including any evidence preferred if there was a conflict and inferences drawn). Appeals are only allowed on a point of law.